IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028058 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his name as J____ S____ HA__RD.  He also requests his net active duty service be changed to show he completed 2 full years of active duty service.

2.  The applicant states he is being denied Department of Veterans Affairs benefits because his DD Form 214 does not show he completed 2 full years.  On 1 March 1999, he petitioned the court to change his middle and last name.

3.  The applicant provides copies of his DD Form 214 and court judgment entry of his change of name.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 23 September 1982, shows he enlisted in the U.S. Army Reserve (USAR) for a period of 6 years under the name of J____ P____ HO__TH.  He also agreed to serve on active duty for a period of 2 years commencing on 7 December 1982.

3.  On 6 December 1982, the applicant was discharged from the USAR for enlistment in the Regular Army.  On 7 December 1982, he enlisted in the Regular Army and reported to Fort Leonard Wood, Missouri, for basic combat training.  He was subsequently assigned to Fort Gordon, Georgia, where he completed advanced individual training and was awarded military occupational specialty 05C (Radio Teletype Operator).

4.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows:

* his name as J____ P____ HO__TH
* his signature as J____ P____ HO__TH

5.  On 9 August 1983, the applicant departed the United States for duty in the Federal Republic of Germany.  He served in Europe until on or about 27 November 1984 when he returned to the United States for release from active duty.

6.  On 27 November 1984, the applicant was released from active duty due to completion of his term of service.  His characterization of service was honorable.

7.  The applicant's DD Form 214 shows:

* Item 1 (Name):  HO__TH, J____ P____
* Item 12a (Date Entered Active duty This Period):  7 December 1982
* Item 12b (Separation Date This Period):  27 November 1984
* Item12c (Net Active Service this Period):  1 year, 11 months, and 21 days

8.  The applicant provides a copy of a court judgment from the County of Cuyahoga, Ohio, dated 1 March 1999, wherein the judge ordered and decreed the name of the applicant was changed to J____ S____ HA__RD.

9.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214.

	a.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

	b.  Item 12c is to be computed by subtracting item 12a from item 12b.

	c.  Item 18 (Remarks):  Mandatory entry:  "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  This information assists the state in determining eligibility for unemployment compensation entitlement.  If the narrative reason for separation on the DD Form 214 indicates completion of required active service, then enter "HAS."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his name as J____ S____ HA__RD and that he completed 2 full years of active duty service.

2.  The applicant served in the Regular Army using the name currently recorded in his military records.  There is no evidence presented that shows the applicant has or would suffer any injury or injustice as a result of the Army maintaining its records with the name under which he served.  The fact that he now desires a change to that name based on a subsequent court order is not a sufficiently mitigating factor that warrants granting relief.  His request should be denied.

3.  The evidence of record clearly shows the applicant contracted to serve on active duty for a period of 2 years.  However, he was released 9 days early in conjunction with his return from an overseas assignment.  The reason for his release from active duty was due to "completion of service."  Accordingly, it would be inappropriate to show he served for a longer period than he actually did.  Therefore, his request to show 2 years of active duty service in item 12c should be denied.

4.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The information contained in those records must reflect the conditions and circumstances that existed at the time the records were created.

5.  At the time of the applicant's separation, no provision existed in the governing regulation to preclude adverse consequences for Soldiers who were released short of completing their first full term of service.  Under the current regulation, a mandatory statement is added to the remarks block of the DD Form 214 to clarify whether the Solder did or did not complete his required service.  In this case, it would be appropriate to add such an entry to the applicant's DD Form 214 to preclude any unintended injustice to him.

6.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided confirming his current name will be filed in his official military personnel file.  This should serve to clarify any questions or confusion in regard to the difference in his current name and the one recorded in his military record and satisfy his desire to have his name documented in his record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented Is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the statement "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" to item 18 of his DD Form 214.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the name under which he served or changing the length of his actual active duty service.



      ____________x_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100028058



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028058



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1